When the Almaraz shoe is on the other foot

The practice of California Workers’ Compensation defense is often one of struggling against the stream. Once in a while, one finds himself swimming with the current.

In a recent case, a truly rare and wondrous event occurred. An AME used Almaraz-Guzman to actually reduce the whole person impairment of an applicant. In Riley v. City of Pasadena (2011) 39 CWCR 117, the AME evaluated applicant’s claims to injuring both her knees.

In rating the right knee, he found that the strict AMA rating would have included 24% whole person impairment (WPI) for the cartilage interval, 2% WPI for the 1.5 cm circumference difference between the left and right knee, and additional impairment, unspecified in his report, for Table 17-33.

The combined values here would have been in excess of 26% WPI, especially when adding the impairments for Table 17-33. However, the AME instead found a more appropriate rating in another table, giving a WPI for the right knee of 26%.

Furthermore, because there were no limitations on activities of daily living, and because applicant testified she could fulfill all her job duties, the AME testified at his deposition that no rating above 7% was warranted.

Perhaps if applicant’s attorney were a regular reader of this blog, he might have been elected to denounce Almaraz and vigorously cite Guzman. The Workers’ Compensation Judge still awarded applicant 15% permanent disability.

On petition for reconsideration, the WCAB granted the petition, finding that the AME’s rating should have been followed, the 15% PD rating was unsupported by the facts and that no evidence, other than applicant’s own testimony, supported the finding that applicant’s left knee injury was the result of her right knee injury, and so was not compensable.

In short, it’s entirely possible that an AME, or even a QME, might come along and use the power of Almaraz/Guzman to actually decrease the whole person impairment rating. Prophesies of this are written in ancient texts hidden deep beneath the foundations of the DWC buildings.

If you should find yourself in such a situation, immediately do the following:

(1) Pinch yourself to make sure you’re not dreaming;

(2) Pinch yourself harder to make sure you’re not dreaming;

(3) Don’t let the Workers’ Compensation Judge stray from this finding, dropping the name Riley if need be. For all the times a WCJ has complained of being powerless to disagree with the medical evidence, a break for a defendant is a precious thing indeed, and well worth fighting for.

A fresh post on Workers' Compensation news, cases and tactics at 8:00 a.m., every Monday through Friday.

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Disclaimer:

The content of this web log is for information purposes only and should not be construed as legal advice. No attorney-client relationship is formed by this site. If you would like to speak to a workers' compensation defense attorney, please contact Gregory Grinberg at 415-813-7004.